Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: On February 3, 2017, a federal court issued a temporary restraining order halting President Trump’s January 27, 2017, executive order. Click here for more information.
On January 27, 2017, President Donald Trump signed an executive order (the “Order”) entitled, Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals. The Order suspends entry into the United States for immigrants and non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen (“affected countries”) for at least 90 days. While the Order is in effect, national and international companies will need to review not only the travel plans of their employees but also the immigration status of affected employees within the United States. An internal review to determine which employees may be affected and a subsequent individualized action plan will assist companies in planning for a possible extension of the Order for a prolonged period of time.
The following provides some recommendations for various visa holders. Because the situation is fluid, employers are advised to contact counsel before taking specific actions.
Non-Immigrant Nationals of the Affected Countries in the United States
- International Travel: Non-immigrant visa holders (including visa categories B, F, J, H, O, TN, etc.) who are currently within the United States are advised not to travel outside the United States.
- Visas Provisionally Revoked: The Department of State (DOS) has provisionally revoked all valid nonimmigrant visas for nationals of the affected countries, with certain limited exceptions. If an individual's visa is revoked while he or she is in the United States, his or her nonimmigrant status should not be affected.
- Pending and Future Nonimmigrant/Immigrant Visa Filings With the United States Citizenship and Immigration Services (USCIS): Although there is no official guidance on the matter, the American Immigration Council cites media reports indicating the forthcoming suspension of all pending immigration benefits applications—including asylum petitions, adjustments of status, and naturalization petitions—on behalf of nationals of the affected countries who are within the United States.
- Next Steps: Applicants for immigrant/nonimmigrant benefits should continue to file petitions with the USCIS. Although the petitions may be held in abeyance until further notice, the petition will be receipted and thus applicants will secure their place in line and in some cases, continue to maintain their nonimmigrant/immigrant status as a result of the filing. In addition, employers should monitor the expiration dates of affected employees since timely filed extension of status petitions only permit an automatic extension of work authorization for 240 days beyond the expiration date of certain nonimmigrant visas.
- PERM/Labor certification1 applications will continue to be processed by the Department of Labor because these applications are not immigrant benefits, and because it is the employer’s, not the employee’s, petition.
Non-Immigrants and Immigrants of Affected Countries Outside the United States:
- Non-immigrant visa holders (including visa categories B, F, J, H, O, TN, etc.) from affected countries who are currently outside the United States will not be permitted to enter the United States.
- Valid Visas Provisionally Revoked: The DOS has provisionally revoked all valid nonimmigrant and immigrant visas of nationals of the affected countries, with certain limited exceptions.
- Visa Interviews: In addition, the DOS has temporarily stopped scheduling visa appointments and has halted the processing of immigrant visa applications for nationals of the affected countries. The National Visa Center has cancelled all scheduled immigrant visa interviews for these applicants, including family- or employment-based visa categories, as well as for applicants of fiancé visas.2
- Dual Nationals: Please note that the Order does not restrict the travel of dual nationals from any country with a valid United States visa on a passport of an unaffected country. Embassies and consulates will continue to process visa applications and issue visas to otherwise eligible applicants who apply with a passport from an unrestricted country, even if they hold dual nationality from one of the affected countries.
- Next Steps: We expect that the Order will remain in effect beyond the original 90 days. However, in the meantime, further official guidance on obtaining waivers/exceptions to the entry ban is expected. In addition, eligible dual nationals should consider applying for a visa using their passport from an unaffected country.
- According to a FAQ response from U.S. Customs and Border Patrol, F1/J1/M1 visas are temporarily suspended. Individuals who were in the United States at the time of the signing of the Order are not affected.3
- Guidance has not been issued on cap gap or OPT4 extensions.
- Next Steps: Students in nonimmigrant status are advised not to travel outside the United States. In addition, students should contact their DSO5 regarding any possible I-20/DS-2019 extensions that may be necessary.
Legal Permanent Residents
- The entry of legal permanent residents (commonly referred to as “green card holders”) will generally be permitted. White House Counsel Donald McGann clarified that the entry ban does not apply to such individuals.6
Individuals Applying in the FY2018 H-1B Cap Lottery
- Such individuals from the affected countries should proceed with their H-1B visa applications. However, please note that the visa applications will likely not be adjudicated within the duration of the ban.
- Next Steps: Although we advise all employers of individuals from affected countries to apply in the FY2018 H-1B cap lottery, issues as to continued work authorization in the U.S. may arise if beneficiaries from affected countries are not eligible for cap gap designation in their I-20, or their petition is not adjudicated by October 1, 2017.
As additional information regarding the Order comes to light, Littler will continue to update its guidance on these matters.
1 A PERM/Labor Certification is an application filed with the Department of Labor to prove there is no able, willing or qualified U.S. worker who can perform the job. This is the first step in the permanent residency process for many individuals.
3 See NAFSA’s “Travel Advisory for Nationals of Certain Countries Pursuant to Executive Order” available at https://www.nafsa.org/Professional_Resources/Browse_by_Interest/International_Students_and_Scholars/Travel_Advisory_for_Nationals_of_Certain_Countries_Pursuant_to_Executive_Order/
4 Optional Practical Training (OPT) is a benefit that allows recent graduates of U.S. Universities to apply for Employment Authorization for a specified period of time.
5 The Designated School Official (DSO) is in charge of the F-1/J-1 program at a college or university.
6 Travel Advisory for Nationals of Certain Countries Pursuant to Executive Order, supra note 3.